Judiciary needs to keep public perception in mind

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At the end, perception matters as
much as principles, as justice must not only be done but it must also be seen
to be done.

If the doctrine of separation of
powers is the cornerstone of any functioning democracy, wonders senior lawyer
Gerard Lourdesamy, why should the Prime Minister be able to filter the names of
judges to be considered for appointment to the superior courts. "Why is
the judiciary collectively keeping quiet about this despite the Bar Council
taking up this issue with the government?"

(Editor's Comment: Article 122B(1) states superior court judges are appointed by the Yang Dipertuan Agong, acting on ADVICE of the PRIME MINISTER)

Rightly, or wrongly, there's a
perception among the public that the government only wants certain types of
judges to be promoted to the superior courts, added Gerard who has been in
private practice for nearly a quarter century. "Sadly, this has on
occasion been reflected in some of the more questionable decisions of the
courts."

Gerard was giving the second part of
a take on the remarks by the Chief Justice during the Legal Year 2016. The
Chief Justice, as the head of the judiciary, rightly touched on the
Constitution, the rule of law, human rights and the administration of justice,
he reiterated in the second part of an extended email.

At the end perception matters as
much as principles, continued Gerard, as justice must not only be done but it
must also be seen to be done. "It's telling when we have a situation where
at least three senior judges of the Federal Court, one since retired, and all
well-known for their independence and impartiality, and who have on occasion
dissented on important constitutional cases, are now seldom asked to sit on
important constitutional appeals or petitions."

The most senior judge of the Court
of Appeal, recently retired, did not even get a chance of elevation to the
Federal Court despite his legendary integrity, judicial aptitude and fearless
independence, said Gerard. "It was reportedly because of the alleged
machinations of the Executive."

There wasn't any sound from senior
judges in defence of judicial independence, said the senior lawyer. "It
was imperative to review the arbitrary right of the Prime Minister to reject a
name put to him for judicial appointment for the consideration of the Conference
of Rulers."

The Chief Justice can, at the
request of the Prime Minister, said Gerard elsewhere, almost immediately assign
High Court judges to hear security offences cases in special courts to be set
up for that purpose without even flinching about the doctrine of separation of
powers that he so vigorously, and rightly so, defends.

Hence, said the senior lawyer, it's regrettable
that a judge of the Court of Appeal was reprimanded for suggesting the setting
of a special court to settle inter-religious disputes on the dissolution of
civil marriages and child custody in cases where one party has converted to
Islam in the course of his dissenting judgment in a recent child custody case.
"Since time immemorial, judges have commented on the need for legislative
reform or policy changes from a legal as opposed to a political
perspective."

"There's nothing sacrilegious about this. It does not offend the doctrine of separation of powers."

The judiciary, being a component of
the government is entitled to comment on the law and matters that touch upon
the administration of law and justice, argued Gerard. "If all such matters
are deemed to be policy decisions, exclusively within the purview of the
Executive, by the same token no specialist courts should be set up unless the
government first makes a policy decision on the same."

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Credit: wikiwand

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